1986 PLP 86 (CLC)

3. An application for ejectment under section 13 of the West Pakistan. Urban Rent Restriction Ordinance, 1959 was then filed by the respondents against the appellant No. 1 and one Ghulam Abbas on the ground of default and subletting which was registered as Rent Case No. 868 of 1975. The appellant No. 1 raised a preliminary objection that there was no relationship of landlord and tenant between him and the respondents. The learned Rent Controller framed a preliminary issue on the question of relationship of landlord and tenant and by his order, dated 7‑12‑1980 decided the same in favour of respondents holding that there exists relationship of landlord and tenant between appellant No. 1 and respondents, w.e.f. 22‑3‑1972. The learned Rent Controller, thereafter set down the case for evidence after framing the following two issues:‑ (1) Whether the opponent has committed default for payment of rent? (2) Whether the opponent No. 1 has sublet the disputed premises to opponent No. 2?

4. The parties led their evidence, oral as well as documentary, and after hearing the arguments of the learned counsel for the parties, the learned Rent Controller gave his finding on both the issues in the affirmative and ordered ejectment of the appellants by his order, dated 31‑7‑1983, which has been challenged in this appeal.

5. Mr. M.M. Baig, learned counsel for the appellants has raised the plea that the learned Rent Controller, in the facts and circumstances of the case, ought to have exercised his discretion in favour of the appellants and should have held that the default was merely technical and not wilful. It was next contended by him that the finding on the issue of subletting is not correct and is unsustainable on facts and in law.

6. Elaborating his first contention, Mr. Baig submitted that the Rent Controller did not take into consideration the fact that the tenement in question was not included in the P.T.O. issued to S.M. Baqar by the Settlement Department and so the sale‑deed executed by him in favour of the respondents. His refusal to pay the rent to the respondents was bona fide.

7. It is pertinent to note that no application was filed by the appellant for transfer of the said tenement No. 2/2 under Scheme No.l. On 30‑5‑1973 he, however, filed an application for transfer of the same to him under Scheme No. VIII which was rejected by the Deputy Settlement Commissioner by his order, dated 24‑10‑1973 following two earlier orders, dated 5‑11‑1968 and 23‑4‑1970 passed by the Additional Settlement Commissioner and Settlement Commissioner in respect of the disputed tenement bearing No. 2/2 of the building in question, that the tenement in question was not an independent tenement. It was a wooden cabin, purely a temporary structure and did not fall within the definition of a house and it was not available for transfer. The appellant No. 1 filed a Constitutional petition in the High Court (Civil Petition No. 1209 of 1973) which was dismissed on 10‑9‑1979 holding that the tenement in occupation of the appellant No. 1 was not an independent unit and it was part and parcel of the roof on which it was erected. He then filed a petition for Special Leave to Appeal before the Supreme Court of Pakistan which was also dismissed on 3‑9‑1980, coming to an "irresistable logical conclusion that the roof and the temporary structure thereon in the form of wooden cabins without any permanent support would go with the main building to the transferee thereof, i.e. the respondents. The appellant No. 1 even then contested the preliminary issue before the learned Rent Controller and led the evidence and it was only after the preliminary issue was decided against him on 7‑12‑1980, that the appellant No. 1 remitted the rent to the respondent on 31‑12‑1980.

8. Mr. Muqeem Baig, however, placed his reliance on a case reported as Shabbir Ahmad v. Mst. Kabir‑un‑Nisa and others P L D 1975 S C 58 wherein it was held that a tenement separately numbered and not included in P.T.O. could not be said to have been transferred. The case as relied on by Mr. M.M. Baig is distinguishable inasmuch as the Settlement authorities had decided about the tenement in question as long back in 1968 in the case S.M. Baqar v. State and Kaniz Fatima that the tenement in question had no independent existence. In fact, it was ordered to be deleted from the Evacuee Property Register by the Additional Settlement Commissioner, whose order was also confirmed by the Settlement Commissioner on appeal in 1970.

9. Mr. M.M. Baig further contended that the proceedings in respect of the tenement in question were pending and, therefore, if the rent was not tendered or paid by appellant No. 1 he should not suffer for it. The question as arises in this case is whether the pendency of proceedings can give any benefit or safeguard to appellant No. 1 so as to absolve him from being a wilful defaulter in the facts and the circumstances of the case. To controvert the above plea, Mr. Khalil‑ur Rahman has placed his reliance on the case reported as Sikandar Khan v. Muhammad Amin P L D 1979 Kar.

59. Looking to the facts and circumstances of the case that the tenement in question was ordered to be deleted from the Evacuee Property Register as long back in 1968 and the fact that the transfer of the tenement in question in favour of Mst. Kaniz Fatima was ordered to be cancelled and the two tenements situated on the second floor were to go with the transferees of the first floor and the fact that appellant No. 1 did not apply for the transfer of the said tenement under Scheme No. 1 and his application for transfer of the same under Scheme No. VIII was rejected in 1973, before the service of the notice under section 30 of Displaced Persons (Rehabilitation and Compensation) Act, 1958, by respondents, I am of the view that appellant No. 1 ought to have at least, paid the rent to the respondent after service of notice. In any case, he ought to have paid rent in 1979 after the dismissal of his writ petition by the High Court. In case he had any doubt, he could have tendered the rent under protest. He, however, filed a petition for special leave to appeal to the Supreme Court. The said petition was also dismissed on 3‑9‑1980. He still remained adament and did not even care for the consequence. He still had the courage to dispute the issue of the relationship of landlord and tenant. In fact, he contested the issue and led the evidence before the learned Rent Controller and it was only after the issue was decided against him in early December, 1980 that he had no choice but to remit the rent after 3 weeks, of the said order of the learned Rent Controller. In view of the above conduct of the appellant No. 1, I am clear in my mind that the learned Rent Controller was perfectly justified in holding that the appellant No. 1 was a wilful defaulter. Appellant No. 1 did lack in his bona fide and he had deliberately failed to pay the rent to the respondents and thus committed wilful default. The pendency of the proceedings in view of the facts and circumstances of the case could not absolve the appellant from paying the rent. Besides the case referred to above, P L D 1979 Kar. 59 reliance may be placed on Abdul Bashir v. Muhammad Rafiq Khan Sherwani P L D 1974 Kar. 451, Messrs Yousuf & Co. v. Rashida Begum P L D 1975 Kar. 684, Fazluddin Qureshi v. Muhammad Hasan Zuberi P L D 1977 Kar. 418, Muhammad Ashfaq v. Muhammad Tahir P L D 1977 Kar. 853, Amtul Batool v. Muhammad Hussain 1970 S C M R 286, Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others P L D 1985 Lah. 467 and Muhammad Shah Alam v . Muhammad Abdul Ghafoor 1979 S C M R 443.

10. As regards the issue of subletting it has come on record that appellant No. 2 was residing there and was also holding ration card on the said address. The appellant No. 1 did not reside in the disputed premises and has taken 'a flat on rent in the building known as Khatoon Manzil. He holds his Ration Card on the address of Khatoon Manzil B Appellant No. 1 has also his telephone installed on the said place. He has also admitted in the cross‑examination that all the flats in Khatoon Manzil are residential flats. On the material placed on record I find no justification to interfere with the finding of the learned Rent Controller that appellant No. 1 did sublet the premises to appellant No. 2.

11. Mr. M.M. Baig lastly contended that appellant No. 1 having died issueless during the pendency of proceedings in the High Court, appellant No. 2, being his brother, has now stepped into his shoes as his legal heir and has become the tenant. He referred to section 2 (j)(ii) of the Sind Rented Premises Ordinance, 1979 which includes legal heirs in the definition of tenant. The contention is misconceived. Since the ejectment proceedings wel e instituted under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 the rights and liabilities of the parties will be governed by the said Ordinance whereas the Sind Rented Premises Ordinance, 1979 will be applicable, in the case, to procedure only as the case was pending on the date of promulgation of the said Ordinance, as provided in section 27 of the Ordinance. Reliance may be placed on a Division Bench decision of this Court reported as Abdul Rehman v. Haji Mir Ahmad Khan and another P L D 1982 Kar.

532. It may be added here that the definition of legal heir in section 2(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 includes only wife and children. Brother of the deceased tenant as legal heir is not included within the definition of tenant for purposes of the said Ordinance.

12. For the above‑said reasons I find no merit in the appeal which is dismissed with costs. The appellants are directed to vacate the premises within two months and hand over its possession to respondents within two months. M. Y. H Appeal dismissed